Hon'ble Sunil Ambwani, J.

Hon'ble Shyam Shankar Tiwari, J.

1. We have heard Sri Pankaj Dubey for the petitioners. Sri M.C Chaturvedi, learned Chief Standing Counsel assisted by Dr. Y.K Saxena, standing counsel appears for the State respondents. Sri Ramendra Pratap Singh appears for Greater Noida Industrial Development Authority. Sri Naveen Sinha assisted by Sri Rahul Agarwal appears for M/s Supertech Ltd - impleaded respondent in writ petition No. 27396 of 2010.

1. We have heard Sri Pankaj Dubey for the petitioners. Sri M.C Chaturvedi, learned Chief Standing Counsel assisted by Dr. Y.K Saxena, standing counsel appears for the State respondents. Sri Ramendra Pratap Singh appears for Greater Noida Industrial Development Authority. Sri Naveen Sinha assisted by Sri Rahul Agarwal appears for M/s Supertech Ltd - impleaded respondent in writ petition No. 27396 of 2010.

2. The petitioners are original tenure holders, purchasers, and a Society recorded as owners in revenue records of the land in village Patwari, Tehsil, Dadari, District Gautam Buddha Nagar.

3. By these eleven writ petitions, under Article 226 of the Constitution of India, the petitioners have challenged the notification dated 12.3.2008 under Section 4(1), applying Section 17(1) of the Land Acquisition Act, 1894 (in short, the Act) proposing to acquire a total area of about 589.188 hectares of land in the village Patwari, Pargana Dadri, District Gautam Budh Nagar, for public purpose namely for the ‘Planned Industrial Development’ in Greater Noida Industrial Development Authority (GNIDA), District Gautam Budh Nagar, recording the opinion of the Governor, that the provisions of sub section (1) of Section 17, of the Act are applicable to the said land inasmuch as the land is urgently required for the planned industrial development in District Gautam Budh Nagar through GNIDA, and in order to eliminate the delay likely to be caused by an enquiry under Section 5-A of the Act, the Governor is further pleased to direct under sub section (4) of Section 17 of the Act, that the provisions of Section 5A of the Act shall not apply. They have also challenged the notification published in the Official Gazette dated 30.06.2008 under Section 6 read with Section 17(4) of the Act, declaring the acquisition of land; recording the satisfaction that sub section (1) of Section 17 is applicable and directing the Collector of Gautam Budh Nagar, though no award under Section 11 has been made, may, on the expiry of 15 days from the date of publication of the notice under sub section (1) of Section 9, take possession of the land mentioned in the Schedule appended to the notification.

4. By an order dated 7.4.2009, passed in writ petition No. 17068 of 2009 (Har Karan Singh v. State of U.P), the Court directed the State Government, to produce the entire records of acquisition to demonstrate that the satisfaction was recorded by the State Government by applying its own independent mind under Section 4(1) for invoking urgency clause under Section 17(4) of the Act, dispensing with enquiry under Section 5-A of the Act. Similar orders were passed on the other writ petitions challenging the notifications under Section 4(1) read with Section 17(4) and Section 6 read with Section 17(4) of the Act.

5. Sri Pankaj Dubey, learned counsel for the petitioners submits that most of the petitioners are original tenure holders of their respective plots in village Patwari. The GNIDA carried out the survey clandestinely, without informing the petitioners that the land in village is proposed to be acquired. He submits that though the land use of village Patwari in the plan prepared by GNIDA, under clause 3(2) to (6) and 4 to 9 of the New Okhla Industrial Development Area (Preparation and Finalisation of Plan) Regulations, 1991 (in short Regulations) is residential, the GNIDA has acquired large area of land since 21.2.1994 for planned industrial development, however less than 60% of the acquired land has been developed or used for the purpose specified in the acquisition notifications. The Collector, Gautam Budh Nagar made a routine recommendation to the Directorate of Land Acquisition Board, vide letter dated 22.2.2008 along with certificate in form 10, for invoking the provisions of Section 17(4) of the Act for acquiring 589.188 hectares of land for planned industrial development. The proposal included the details of survey carried by the revenue authorities. It did not specify the public purpose, for which the land was proposed to be acquired. In the proposal, no mention was made that the utilization of land was for construction of multi-storey housing complexes for general public.

6. Sri Dubey submits that in all the writ petitions, interim orders were passed to maintain status quo. The GNIDA, however, during the pendency of these writ petitions, initiated bulk allotment scheme for construction of flats and allotted plots of various sizes between 60,000 to 4,00,000 sq. mts at an average rate of about Rs. 11,000/- sq. mtr to various builders between March to August 2010, They started booking the flats and raising constructions. The land was allotted to private builders on a purely commercial basis. The utilization of land acquired for planned industrial development for multi-storey housing complex through builders in an industrial area was not a public purpose. There is no reservation for allotment of flats by the private builders to the persons running industries in GNIDA or to the farmers whose land was acquired.

7. Sri Pankaj Dubey, relying upon the proposal of the District Magistrate for acquisition of land, submits that 732 families with about 1670 farmers are affected by the subject notification in village Patwari. They are tenure holders of 727 Khatas. The District Magistrate has stated in his proposal that out of 732 families, 224 will become landless after acquisition of the land. There are 34 tenure holders belonging to Scheduled Caste, and 1237 tenure holders are small farmers. All of them have been uprooted, after they were forced to part with their possession, inspite of interim orders. The land is being used by private builders for commercial purpose, which has no correlation with industrial purpose.

8. Sri Pankaj Dubey submits that the land acquired for public purpose cannot be used for private utilization and commercial purpose. The State Government has played fraud with the farmers by proposing to acquire land for public purpose viz., planned industrial development whereas actual plan proposed was for allotment of land to private builders for construction of multi-storey housing complexes, in profit motive. He has produced, copy of letter dated 15.10.2010 of the Assistant Public Information (Estate) of GNOIDA, given to one Sri Rajiv Kumar Bhatt under the Right to Information Act, in which it has been stated that the land use in Sector 1, 2, 3 and 4, is residential and thus no land has been allotted for industrial development. A chart has been enclosed with the said letter, which indicates that plot Nos. GH-01 to GH-12A have been allotted to several companies, undertaking development by raising multi-storey complex. The details of plot numbers/sector, allotted area, allotment/bid rate, name of allottee and date of allotment, given in the chart, which was supplied to Sri Rajiv Kumar Bhatt under the RTI Act, is quoted hereunder:-

Sl. No. Scheme Code

Plot No,/Sector

Allotted Area (Sq Mtr.)

Allotment/Bill Rate

Name of allottee DOA

1 RTS01/10 GH-01, Sector-4 483245 7972 M/s. Gaursons Hitech Infrastructure Pvt Ltd 19.03.10

2 RTS01/10 GH-4, Sector-4 414353 7972 M/s. Aims Golf Town Developers 23.04.10

3 RTS01/10 GH-1, Sector-2 99330 10025 M/s. Ajay Enterprises Pvt Ltd 21.03.10

4 RTS01/10 GH-10, Sector-1 65800 10035 M/s. Universal Construction Co. 19.03.10

5 RTS01/10 GH-4, Sector-1 73900 10050 M/s. Earth Towns Infrastructures Pvt Ltd 19.03.10

6 RTS01/10 GH-03, Sector-1 72600 10019 M/s. Stellar Construction Projects Pvt Ltd 19.03.10 204000 10044 M/s. Supertech Ltd & Panchasheel Buildtech Pvt Ltd 19.03.10

7 RTS01/10 GH-8, Sector-1

8 RTS01/10 GH-02, Sector-4 249066 10026 M/s. Amrapali Smart City 23.04.10

9 RTS01/10 GH-03, Sector-4 167855 10026 M/s. Amrapali Smart City 19.03.10

10 RTS02/10 GH-06, Sector-1 73800 M/s. Express Projects Pvt Ltd 27.04.10

11 RTS02/10 GH-07, Sector-1 65699 10221 M/s. Arihant Buildcon Pvt Ltd 23.04.10

12 RTS02/10 GH-09, Sector-1 65800 10228 M/s. Steller Spring 27.04.10

13 RTS03/10 GH-02, Sector-1 81800 11575 M/s. Shubhkamna Buildtech Pvt Ltd 18.08.10

14 RTS03/10 GH-05, Sector-01 76121 11550 M/s. Paramount Propbuild Pvt Ltd 18.08.10

15 RTS03/10 GH-11, Sector-01 70172 11570 M/s. Gayatri Hospitality and 18.08.10 70555 11555 M/s. Asteroid Shelters Ltd 68166 11574 M/s. Connoisseur Infra Build Pvt Ltd.

16 RTS03/10 GH-12, Sector-01 12/08/10

17 RTS03/10 GH-12A, Sector-01 18.08.10

9. In all these petitions, Sri M.C Chaturvedi, learned Chief Standing Counsel submits that procedure prescribed in the Land Acquisition Act 1894, have been duly followed, for the acquisition of land. In the counter affidavit of Sri Man Mohan Chaudhry, Additional District Magistrate (Land Acquisition/Officer on Special Duty (Land Acquisition), Greater Noida, Gautam Budh Nagar, it is stated that the Village Patwari, Pargana and Tehsil Dadri of Gautam Budh Nagar is a part of the notified area under the Greater Noida Industrial Development Authority. For the purpose of planned industrial development in District Gautam Budh Nagar, proposal for acquisition of 600.60 hectare land in village Patwari was submitted by the GNIDA vide letter dated 31.3.2006, along with note of justification for invoking provision of Section 17(4) of Act, 1984, as the land was needed urgently. The proposal was revised to 590.289 hectares vide letter No. 660 dated 21.7.2006 The Collector examined the proposal and sent it with his recommendations to the State Government through the Director of Land Acquisition, for acquisition of 589.188 hectares of land. The State Government examined the material placed before it, and after subjectively satisfied, issued notification under Sections 4, coupled with invocation of urgency clause under Section 17(1)(4), published in the Government Gazette (extraordinarily) on 12.3.2008 and in the two local newspapers namely ‘Amar Ujala’ and ‘Dainik Jagran’ on 20.3.2008 Thereafter Section 6 notification was published in Government Gazette (extraordinary) on Realcon Ltd 30.6.2008, and in the same newspapers on 9.7.2008 The notices were also issued to the individual tenure holders under Section 9 of the Act, and after expiration of 15 days time, as stipulated in the Act, the possession of the land was taken and was handed over to the GNIDA on 5.9.2008 for an area 572.592 hectares, and on 12.1.2009 for an area of 1.453 hectares. The GNIDA deposited 10% of the cost of acquisition and 10% of estimated compensation before issuance of Section 4 notification, 70% of the estimated compensation was deposited, after declaration of the notice under Section 6 of the Act.

10. In the note of justification under Section 4/17, filed as Annexure-CA-4 to the counter affidavit, it was stated by the District Magistrate, District Gautam Budh Nagar that 727 plots of land - area 590.246 hectares, are proposed to be acquired, which would affect 732 families and 1617 farmers. Out of these, 224 farmers will become landless as a result of acquisition, 34 belong to scheduled caste and that there are 1227 small farmers. The details of existing constructions, boring, tube wells on each plot, with the name of plot holders was also provided to the State Government.

11. Learned Chief Standing Counsel submits that compensation has been accepted by the land owners for an area of 488 hectares, and only 25 persons have filed writ petitions, in which status quo orders were passed by the court. He submits that the facts of the present case are different from the facts of the case in Civil Misc. Writ Petition No. 500 of 2010 (Devendra Kumar v. State of UP) connected writ petitions decided on 12.5.2011, challenging the Sections 4 and 6 notifications in respect of village Shahberi, Tehsil Dadri. In this case there was no hidden purpose for acquisition, and the land use was not changed, whereas in Devendra Kumar's case, the main allegations was that of change of land use from industrial to residential. After taking possession of the land by the State Government and handed over to GNIDA on 5.9.2008 and 12.1.2009, allotments were made by the GNIDA to the builders/construction companies in March-August 2010. The lease deeds have been executed and construction work is in progress.

12. Sri Ramendra Pratap Singh, learned counsel for the GNIDA submits that in the present case the GNIDA did not change the land use. The land has been acquired under Section 6(1) of the Act for public purpose, namely planned industrial development in District Gautam Budh Nagar. He submits that GNIDA was constituted under Section 3 of the UP Industrial Area Development Act, 1976 (Act of 1976) with the aim to provide for the constitution of an Authority for the development of certain areas in the State into industrial and urban township and for the matters connected herewith. The notifications, acquiring land in village Patwari have been issued strictly in accordance with law following provisions of the Land Acquisition Act. The notification under Section 4/17 of the Land Acquisition Act for acquiring 589.188 hectares of Village Patwari was issued on 12.3.2008 The same was published in widely circulated newspapers, namely ‘Amar Ujala’ and ‘Danik Jagran’ on 30.3.2008 The people of the area were informed by beat of drums and notices were pasted in the public building on 8.4.2008 The declaration under Section 6/17 of the Act was issued on 30.6.2008 The Special Land Acquisition Officer issued notices under Section 9 and 6.8.2008 was fixed for hearing the objections. The possession of plot No. 324, 578 and 1135 was taken by the State Government and handed over the possession of the land to GNIDA on 5.9.2008 The land has vested in GNIDA free from all encumbrances with provisions of Act.

13. It is submitted that in plot Nos. 1120, 1121, 1123, 1134, 1137 and 1138 some constructions were found and considering that these plots are on the periphery of the acquired land, the area 1000, 1710, 770, 760, 600 and 2000 sq. mt. was proposed to be left out.

14. In para 12 of the counter affidavit of GNIDA, it is stated that the GNIDA deposited 10% of the cost of acquisition, 10% of compensation amount to the tune of Rs. 40,23,40,982/- on 21.1.2007, 70% of the compensation amount i.e Rs. 140,82,18,439/- was deposited on 26.5.2008, and Rs. 4,45,10,375/- was deposited on 26.5.2008 under the National Rehabilitation Scheme and balance amount of Rs. 60,00,00,000/- was deposited on 6.10.2008

15. Sri Navin Sinha, learned Senior Advocate assisted by Sri Rahul Agarwal has filed an impleadment application in writ petition No. 29396 of 2010, on behalf of M/s. Supertech Ltd - one of the companies engaged in construction of residential colonies in the scheme of GNIDA on plot No. GH-08, Sector-01, area 2,04,000 sq. mtr. He submits that the land allotted to M/s. Supertech Ltd., is not covered by any interim orders passed in these writ petitions, and that the acquisition of land was carried out, for undertaking planned industrial development by the GNIDA. The possession of the land belonging to various individuals was taken over by GNIDA on 5.9.2008 Subsequent to taking over possession, the GNIDA reorganized the entire acquired land and prepared a scheme for its development. As per the scheme, large tracts of land were left by GNIDA for laying of roads, sewer lines, electricity lines and towards green belt. A number of plots were earmarked for different purposes such as for parks, schools, hospitals, industry and for residential colonies. The plot allotted to the applicant company situate in village Patwari, and part of it also falls in village Bisrakh Jalalpur, The total amount payable by the allottee company is Rs. 194.46 crores. Subsequent to the allotment, a lease deed in favour of the allotte company was executed on 1.4.2010 He has annexed copy of allotment letter dated 19.3.2010, and copy of lease deed dated 1.4.2010, on which stamp duty of Rs. 9,69,95,000/- has been paid to the State of U.P It is stated that the applicant company has already paid Rs. 11 crores as premium for allotment of plot to GNIDA (including 5% at the time of allotment and subsequent instalments) The applicant floated a project known as Eco Village-I, which comprises of approximately 6000 residential units of varying sizes. A sum of Rs. 23.22 crores was spent by the applicant-company towards advertising campaign, in order to attract bookings and so far 4471 members of the public have booked units in the aforesaid Eco Village-I project, about 65-70% bookings have been financed by banks/financial institutions by taking residential units. The Banks/financial institutions have given a sum of Rs. 67.74 crores towards the booking amount, which has already been utilized by the applicant towards construction/development activities. It is further stated that at time of allotment and execution of sale deed, the applicant company was unaware that petitions challenging the acquisition of land by GNIDA/State of U.P have been filed in the High Court.

16. Sri Navin Sinha further submits that in the present case, the GNIDA acquired the land for residential purposes and thus land use has not been changed and the GNIDA did not commit any illegality in the acquisition of land for developing housing colonies as there is demand, necessity and need to provide houses to the people in the close proximity of national capital. There are no pleadings of malafide and the case would not fall within the purview of the judgement of the Court in Devendra Kumar (Supra), as in the present case the land use was not changed and there was no colorable exercise of power in the acquisitions to interfere and quash the notifications under Section 4 & 6 of the Act.

17. We find that in the present case, there are specific pleadings of fraud and allegations of ultimate land use, for private purposes. In para 32 of writ petition No. 29396 of 2010, it is stated as follows:

“32. That the impugned notifications are wholly wrongful, illegal, malafide and a fraud on the statute and a colorable exercise of power under the provisions of the Land Acquisition Act.”

18. The GNIDA has not given any specific reply and has simply denied the averments.

19. The sequence of the dates, in which the notifications were approved by the State Government to dispense with enquiry by invoking Section 17, given in the counter affidavit of Sri Man Mohan Chaudhary, Additional District Magistrate, Land Acquisition, GNIDA filed on behalf of State Government is summarized as follows:-

1. The Special Officer, GNIDA sent a proposal to the Additional District Magistrate (Land Acquisition), GNIDA for acquisition of 600.600 hectares of land in Village Patwari. He stated that according to the development plan, the land is urgently required for development work of the Authority under the Land Acquisition Act. There is strong possibility of encroachment and unauthorized construction over the land affecting development scheme and thus it is necessary to apply Section 17 of the Act so that possession of the land may be taken.

2. The Collector sent the proposal to the Directorate of Acquisition on 22.2.2008

3. The Collector's proposal to acquire the land, and to apply Section 17 along with letter of the Director (Land Acquisition) was placed before the State Government. The State Government accepted the proposal and approved the application of Section 17 of the Act to the acquisition, reiterating the grounds given in the note namely that the land is immediately needed for planned industrial development; in case of delay in acquisition, there is strong possibility of encroachments, and further that hearing of the objections will take sufficient time, which will adversely affect the planned development.

4. The notification under Section 4 was published on 12.3.2008

5. On 21.6.2008, the District Magistrate sent a proposal to the Directorate of Land Acquisition informing that notification under Section 4(1)/17 of the Act has been published on 12.3.2008 The notification was also published in news papers. 70% of compensation in advance and 100% amount under Rehabilitation Scheme 2003 has been deposited. He requested for publication of notification under Section 6(17) of Act.

6. The notification under Section 6/17 of the Act was published on 30.6.2008

20. In Anand Singh v. State of Uttar Pradesh JT 2010 (8) SC 15 decided on 28.7.2010; State of West Bengal v. Prafulla Churan Law 2011 (3) AD (SC) 296 decided on 4.2.2011 and Dev Sharan v. State of UP (2011) SCC L. Com 189 decided on 3.7.2011, the Supreme Court has considered the matter of invoking the urgency clause under Section 17(1) and (4) along with Section 4 of the Act dispensing with hearing of objections under Section 5A. The Supreme Court, considering its earlier judgments held in paragraphs 29, 30, 31 of the Anand Singh's case (Supra) as follows:-

29. ‘Eminent domain’ is right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes. It is exercise of strong arm of government to take property for public uses without owner's consent. It requires no constitutional recognition; it is an attribute of sovereignty and essential to the sovereign government. (Words and Phrases, Permanent Edition, Volume 14, 1952 (West Publishing Co.,).

30. The power of eminent domain, being inherent in the government, is exercisable in the public interest, general welfare and for public purpose. Acquisition of private property by the State in the public interest or for public purpose is nothing but an enforcement of the right of eminent domain. In India, the Act provides directly for acquisition of particular property for public purpose. Though right to property is no longer fundamental right but Article 300A of the Constitution mandates that no person shall be deprived of his property save by authority of law. That Section 5A of the Act confers a valuable right to an individual is beyond any doubt. As a matter of fact, this Court has time and again reiterated that Section 5A confers an important right in favour of a person whose land is sought to be acquired. When the government proceeds for compulsory acquisition of particular property for public purpose, the only right that the owner or the person interested in the property has, is to submit his objections within the prescribed time under Section 5A of the Act and persuade the State authorities to drop the acquisition of that particular land by setting forth the reasons such as the unsuitability of the land for the stated public purpose; the grave hardship that may be caused to him by such expropriation, availability of alternative land for achieving public purpose etc. Moreover, right conferred on the owner or person interested to file objections to the proposed acquisition is not only an important and valuable right but also makes the provision for compulsory acquisition just and in conformity with the fundamental principles of natural justice. The exceptional and extraordinary power of doing away with an enquiry under Section 5A in a case where possession of the land is required urgently or in unforeseen emergency is provided in Section 17 of the Act. Such power is not a routine power and save circumstances warranting immediate possession it should not be lightly invoked. The guideline is inbuilt in Section 17 itself for exercise of the exceptional power in dispensing with enquiry under Section 5A. Exceptional the power, the more circumspect the government must be in its exercise. The government obviously, therefore, has to apply its mind before it dispenses with enquiry under Section 5A on the aspect whether the urgency is of such a nature that justifies elimination of summary enquiry under Section 5A. A repetition of statutory phrase in the notification that the state government is satisfied that the land specified in the notification is urgently needed and provision contained in Section 5A shall not apply, though may initially raise a presumption in favour of the government that pre-requisite conditions for exercise of such power have been satisfied, but such presumption may be displaced by the circumstances themselves having no reasonable nexus with the purpose for which power has been exercised. Upon challenge being made to the use of power under Section 17, the government must produce appropriate material before the court that the opinion for dispensing with the enquiry under Section 5A has been formed by the government after due application of mind on the material placed before it. It is true that power conferred upon the government under Section 17 is administrative and its opinion is entitled to due weight, but in a case where the opinion is formed regarding the urgency based on considerations not germane to the purpose, the judicial review of such administrative decision may become necessary. As to in what circumstances the power of emergency can be invoked are specified in Section 17(2) but circumstances necessitating invocation of urgency under Section 17(1) are not stated in the provision itself. Generally speaking, the development of an area (for residential purposes) or a planned development of city, takes many years if not decades and, therefore, there is no reason why summary enquiry as contemplated under Section 5A may not be held and objections of land owners/persons interested may not be considered. In many cases on general assumption, likely delay in completion of enquiry under Section 5A is set up as a reason for invocation of extraordinary power in dispensing with the enquiry little realizing that an important and valuable right of the person interested in the land is being taken away and with some effort enquiry could always be completed expeditiously. The special provision has been made in Section 17 to eliminate enquiry under Section 5A in deserving and cases of real urgency. The government has to apply its mind on the aspect that urgency is of such nature that necessitates dispensation of enquiry under Section 5A. We have already noticed few decisions of this Court. There is conflict of view in the two decisions of this Court viz.; Narayan Govind Gavate3 and Pista Devi6. In Om Prakash10 this Court held that decision in Pista Devi6 must be confined to the fact situation in those days when it was rendered and the two-Judge Bench could not have laid down a proposition contrary to the decision in Narayan Govind Gavate3. We agree. As regards the issue whether pre-notification and post-notification delay would render the invocation of urgency power void, again the case law is not consistent. The view of this Court has differed on this aspect due to different fact-situation prevailing in those cases. In our opinion such delay will have material bearing on the question of invocation of urgency power, particularly in a situation where no material has been placed by the appropriate government before the court justifying that urgency was of such nature that necessitated elimination of enquiry under Section 5A.

31. In a country as big as ours, the roof over head is a distant dream for large number of people. The urban development continues to be haphazard. There is no doubt that planned development and housing are matters of priority in developing nation. The question is as to whether in all cases of ‘planned development of the city’ or ‘for the development of residential area’, the power of urgency may be invoked by the government and even where such power is invoked, should the enquiry contemplated under Section 5A be dispensed with invariably. We do not think so. Whether ‘planned development of city’ or ‘development of residential area’ cannot brook delay of few months to complete the enquiry under Section 5A? In our opinion, ordinarily it can. The government must, therefore, do a balancing act and resort to the special power of urgency under Section 17 in the matters of acquisition of land for the public purpose viz.; ‘planned development of city’ or ‘for development of residential area’ in exceptional situation. Use of the power by the government under Section 17 for ‘planned development of the city’ or ‘the development of residential area’ or for ‘housing’ must not be as a rule but by way of an exception. Such exceptional situation may be for the public purpose viz., rehabilitation of natural calamity affected persons; rehabilitation of persons uprooted due to commissioning of dam or housing for lower strata of the society urgently; rehabilitation of persons affected by time bound projects, etc. The list is only illustrative and not exhaustive. In any case, sans real urgency and need for immediate possession of the land for carrying out the stated purpose, heavy onus lies on the government to justify exercise of such power. It must, therefore, be held that the use of the power of urgency and dispensation of enquiry under Section 5A by the government in a routine manner for the ‘planned development of city’ or ‘development of residential area’ and thereby depriving the owner or person interested a very valuable right under Section 5A may not meet the statutory test nor could be readily sustained.”

21. The facts in the present case are same as in the case of Sri Radhey Shyam (Dead) through LR v. State of UP [Civil Appeal No. 3261 of 2011, decided on 18.4.2011]. The Supreme Court noticed all the previous judgments delivered by the Supreme Court in the past and laid down following principles:-

“53. From the analysis of the relevant statutory provisions and interpretation thereof by this Court in different cases, the following principles can be culled out:

(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good. - Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR (1954) SC 119, Chiranjit Lal 65 Chowdhuri v. Union of India AIR (1951) SC 41 and Jilubhai Nanbhai Khachar v. State of Gujarat(1995) Supp. (1) SCC 596.

(ii) The legislations which provide for compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana(2003) 5 SCC 622; State of Maharashtra v. B.E Billimoria(2003) 7 SCC 336 and Dev Sharan v. State of U.P, Civil Appeal No. 2334 of 2011 decided on 7.3.2011

(iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty bound to scrutinize the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the land owner is likely to become landless and deprived of the only source of his livelihood and/or shelter.

(iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of Sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the land owner or other interested persons.

(v) Section 17(1) read with Section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of Section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even few weeks or months. Therefore, before excluding the application of Section 5-A, the concerned authority must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under Section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired.

(vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under Section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the concerned authorities did not apply mind to the relevant factors and the records.

(vii) The exercise of power by the Government under Section 17(1) does not necessarily result in exclusion of Section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word “may” in sub-section (4) of Section 17 makes it clear that it merely enables the Government to direct that the provisions of Section 5-A would not apply to the cases covered under sub-section (1) or (2) of Section 17. In other words, invoking of Section 17(4) is not a necessary concomitant of the exercise of power under Section 17(1).

(viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of Section 4 but that, by itself, does not justify the exercise of power by the Government under Section 17(1) and/or 17(4).

The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years.

Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in Section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in Section 5-A (1) and (2) is not at all warranted in such matters.

(ix) If land is acquired for the benefit of private persons, the Court should view the invoking of Section 17(1) and/or 17(4) with suspicion and carefully scrutinize the relevant record before adjudicating upon the legality of such acquisition.”

22. The Supreme Court thereafter observed in the facts of that case, that there was no justification for the State Government to invoke the urgency provisions contained in Section 17(1) excluding the application of Section 5A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. Paragraphs 54 to 62 of the judgment are quoted:-

“54. The stage is now set for consideration of the issue whether the State Government was justified in invoking the urgency provision contained in Section 17(1) and excluding the application of Section 5-A for the acquisition of land for planned industrial development of District Gautam Budh Nagar. A recapitulation of the facts shows that upon receipt of proposal from the Development Authority, the State Government issued directions to the concerned authorities to take action for the acquisition of land in different villages including village Makora. The comments/certificate signed by three officers, which was submitted in the context of Government Order dated 21.12.2006 was accompanied by several documents including proposal for the acquisition of land, preliminary inquiry report submitted by the Amin, Land Acquisition, copies of khasra 69 khatauni and lay out plan, 10 per cent of the estimated compensation and a host of other documents. In the note dated nil jointly signed by Deputy Chief Executive Officer, Greater Noida, Collector, Gautam Budh Nagar and four other officers/officials, the following factors were cited in justification of invoking the urgency provisions:

a. The area was notified under Uttar Pradesh Industrial Areas Development Act, 1976 for planned industrial development.

b. If there is any delay in the acquisition of land then the same is likely to be encroached and that will adversely affect the concept of planned industrial development of the district.

c. Large tracts of land of the nearby villages have already been acquired and in respect of some villages, the acquisition proceedings are under progress.

d. The Development Authority urgently requires land for overall development, i.e construction of roads, laying of sewerages, providing electricity, etc. in the area.

e. The development scheme has been duly approved by the State Government but the work has been stalled due to non-acquisition of land of village Makora.

f. Numerous reputed and leading industrial units of the country want to invest in the State of Uttar Pradesh and, therefore, it is 70 extremely urgent and necessary that land is acquired immediately.

g. If land is not made available to the incoming leading and reputed industrial concerns of the country, then they will definitely establish their units in other States and if this happens, then it will adversely affect employment opportunities in the State and will also go against the investment policy of the Government.

h. If written/oral objections are invited from the farmers and are scrutinized, then it will take unprecedented long time and disposal thereof will hamper planned development of the area.

i. As per the provisions of the Act, there shall be at least one year's time gap between publication of the notifications under Sections 4 and 17 and Section 6.

55. In our view, the above noted factors do not furnish legally acceptable justification for the exercise of power by the State Government under Section 17(1) because the acquisition is primarily meant to cater private interest in the name of industrial development of the district. It is neither the pleaded case of the respondents nor any evidence has been produced before the Court to show that the State Government and/or agencies/instrumentalities of the State are intending to establish industrial 71 units on the acquired land either by itself or through its agencies/instrumentalities. The respondents have justified the invoking of urgency provisions by making assertions, which are usually made in such cases by the executive authorities i.e the inflow of funds in the State in the form of investment by private entrepreneurs and availability of larger employment opportunities to the people of the area. However, we do not find any plausible reason to accept this tailor-made justification for approving the impugned action which has resulted in depriving the appellants' of their constitutional right to property.

Even if planned industrial development of the district is treated as public purpose within the meaning of Section 4, there was no urgency which could justify the exercise of power by the State Government under Section 17(1) and 17(4). The objective of industrial development of an area cannot be achieved by pressing some buttons on computer screen. It needs lot of deliberations and planning keeping in view various scientific and technical parameters and environmental concerns. The private entrepreneurs, who are desirous of making investment in the State, take their own time in setting up the industrial units. Usually, the State Government and its agencies/instrumentalities would give them two to three years' to put up their factories, establishments etc.

Therefore, time required for ensuring compliance of the provisions contained in Section 5-A cannot, by any stretch of imagination, be portrayed as delay which will frustrate the purpose of 72 acquisition. In this context, it is apposite to note that the time limit for filing objection under Section 5-A (1) is only 30 days from the date of publication of the notification under Section 4(1). Of course, in terms of sub-section (2), the Collector is required to give opportunity of hearing to the objector and submit report to the Government after making such further inquiry, as he thinks necessary. This procedure is likely to consume some time, but as has been well said, “Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law.”

56. In this case, the Development Authority sent proposal some time in 2006. The authorities up to the level of the Commissioner completed the exercise of survey and preparation of documents by the end of December, 2006 but it took one year and almost three months to the State Government to issue notification under Section 4 read with Section 17(1) and 17(4). If this much time was consumed between the receipt of proposal for the acquisition of land and issue of notification, it is not possible to accept the argument that four to five weeks within which the objections could be filed under sub-section (1) of Section 5-A and the time spent by the Collector in making inquiry under sub-section (2) of Section 5-A would have defeated the object of acquisition.

57. The apprehension of the respondents that delay in the acquisition of land will lead to enormous encroachment is totally unfounded. It is beyond the comprehension of any person of ordinary prudence to think that the land owners would encroach their own land with a view to frustrate the concept of planned industrial development of the district.

58. The perception of the respondents that there should be atleast one year's time gap between the issue of notifications under Sections 4 and 6 is clearly misconceived. The time limit of one year specified in clause (ii)) of the proviso to Section 6(1) is the outer limit for issue of declaration. This necessarily means that the State Government can complete the exercise under Sections 5-A and 6 in a shorter period.

59. The only possible conclusion which can be drawn from the above discussion is that there was no real and substantive urgency which could justify invoking of the urgency provision under Section 17(1) and in any case, there was no warrant to exclude the application of Section 5-A which, as mentioned above, represent the statutory embodiment of the rule of audi alteram partem.

60. We also find merit in the appellants' plea that the acquisition of their land is vitiated due to violation of the doctrine of equality enshrined in Article 14 of the Constitution. A reading of the survey report shows that the committee constituted by the State Government had recommended release of land measuring 18.9725 hectares. Many parcels of land were released from acquisition because the land owners had already raised constructions and were using the same as dwelling units. A large chunk of land measuring 4.3840 hectares was not acquired apparently because the same belong to an ex-member of the legislative assembly. The appellants had also raised constructions on their land and were using the same for residential and agricultural purposes. Why their land was not left out from acquisition has not been explained in the counter affidavit filed by the respondents. The High Court should have treated this as sufficient for recording a finding that the respondents had adopted the policy of pick and choose in acquiring some parcels of land and this amounted to violation of Article 14 of the Constitution. Indeed it has not been pleaded by the respondents that the appellants cannot invoke the doctrine of equality because the other parcels of land were illegally left out from acquisition.

61. The argument of the learned senior counsel for the respondents that the Court may not annul the impugned acquisition because land of other villages had already been acquired and other land owners of village Makora have not come forward to challenge the acquisition of their land cannot be entertained and the Court cannot refuse to protect the legal and constitutional 75 rights of the appellants' merely because the others have not come forward to challenge the illegitimate exercise of power by the State Government. It is quite possible that others may have, due to sheer poverty, ignorance and similar handicaps not been able to avail legal remedies for protection of their rights, but that cannot be made basis to deny what is due to the appellants.

62. In the result, the appeal is allowed. The impugned order is set aside and the writ petition filed by the appellants is allowed. Respondent No. 1 is directed to pay cost of Rs. 5,00,000/- to the appellants for forcing unwarranted litigation on them. It is, however, made clear that the respondents shall be free to proceed from the stage of Section 4 notification and take appropriate action after complying with Section 5-A(1) and (2) of the Act. It is needless to say if the appellants' feel aggrieved by the fresh exercise undertaken by the State Government then they shall be free to avail appropriate legal remedy.”

23. In the present case, we find that apart from mechanically applying Section 17 of the Act, on the facts and circumstances, which were not approved in Radhey Shyam's case (supra), the GNIDA did not acquire the land for planned industrial development or for the purposes connected therewith. The GNIDA was fully aware and was planning to use the land in village Patwari and neighboring villages for multistory housing complexes to be developed by the builders on relaxed conditions. The sequence of dates and events given in the preceding paragraphs establish that a request was made for acquiring the land for public purpose for planned industrial development and as soon as the land was acquired, the State Government and GNIDA started preparing for allotment of land to the private builders for housing complexes for earning profits.

24. The Supreme in its recent decision in SLP (Civil) No. 16366 of 2011 [Greater Noida Industrial Development Authority v. Devendra Kumar], decided on 6.7.2011 has held that the scheme of 1976 Act and the Regulations do not empower the Authority to manipulate the acquisition of land for a private purpose, which will be achieved only by invoking the provisions of Chapter VII of the 1894 Act.

25. The argument that out of 1600 farmers, about 1400 have accepted compensation under the agreement known ‘Karar Niyamawali 1997” cannot support the illegalities committed in the proceedings of acquisition. It is admitted that no award has been prepared under Section 11 of the Act by the Special Land Acquisition Officer. The farmers were offered compensation at the rates, which are alleged to be fixed in consultation by the district administration, officers of GNIDA and farmers. The possession of part of the land was taken on 5.9.2008 and remaining part was on 12.1.2009 Most of the farmers became landless after possession of the land was taken from them. Since the award was not declared, they had no option, but to accept the compensation by entering into an agreement with the State Government and GNIDA, in which they had to surrender their rights to file applications for enhancement of compensation under Section 18 of the Act. We are of the opinion that in such a situation where the possession of the land was taken from the farmers and no award was prepared for more than two years, the circumstances virtually force them to accept the compensation under an agreement. Since, we have held that application of Sections 17(1) and (4) of the Act was not legal, the acceptance of compensation by some of the farmers will not stop them from challenging the acquisition. The Supreme Court in Devendra Kumar's case (supra) has turned down the similar contention and held as follows:-

“The situation in which the people belonging to this class are placed in the matter of acquisition of their land leave little choice to them but to make compromises and try to salvage whatever they can. Therefore, even though some persons may not have resisted the acquisition and may have accepted the compensation by entering into agreement, it is not possible to find any fault in approach adopted by the High Court.

26. The Supreme Court further observed in that case that :-

“It must be remembered that the land is just like mother of the people living in the rural areas of the country. It is the only source of substance and livelihood for the land owner and his family. If the land is acquired, not only the present but the future generations of the landowner are deprived of their livelihood and the only social security. They are made landless and are forced to live in slums in the urban areas because there is no mechanism for ensuring alternative source of livelihood to them. Mindless acquisition of cultivable land may also lead to serious food crisis in the country.

27. We are informed that writ petition No. 45777 of 2008 filed by one Sri Harish Chand, challenging the same notifications was dismissed on 26.11.08, and another writ petition No. 38758 of 2008 filed by Crane Bel International Private Ltd., was dismissed on 26.8.2010

28. We have gone through the judgments. The writ petition No. 45777 of 2008, was not filed challenging same notifications involved in the present case. The date of Section 4 notification was 20.3.2007 and the date of Section 6 notification was 9.7.2008 The writ petition was dismissed by the High Court summarily after looking record and without filing of the counter affidavit filed by the State and GNIDA. The judgment dated 26.11.2008 of the Court rendered in writ petition No. 45777 of 2008 dated 26.11.2008, is quoted hereunder:

“Heard learned counsel for the petitioner and the learned Standing Counsel.

Learned Standing Counsel has produced the original records pertaining the land acquisition proceedings under challenge. The notification dated 20.3.2007 and 9.7.2008 under Section 4 and 6 respectively have been assailed on the ground that there is no material before the State Government to arrive at a conclusion and there was an urgency for invoking Section 17 of the Land Acquisition Act.

We have perused the original records and we find that the District Magistrate had indicated various factors which led him to arrive at a conclusion that the land was required urgently and there was justification for acquiring the land. The State Government having regard to the letters/reports on record formed an opinion that it was a fit case to strike the urgency clause under Section 17 of the Land Acquisition Act. We are therefore of the opinion that the contention raised on behalf of the writ petitioner has no force. Further, we are fortifying our opinion in view of the decision of the Division Bench of this Court in case of Lakhami v. State of U.P 2008 (9) ADJ 657 and Jasraj Singh v. State of U.P 2008 (8) ADJ 329.

Accordingly, we find no good grounds to interfere with the writ petition.

The writ petition is dismissed.”

29. The writ petition No. 38758 of 2008 filed by M/s. Crane Bel International Private Ltd, was dismissed on 26.8.2010, for non disclosure and suppression of material fact. The petitioners of that writ petition claimed that they are going to set up a Rural Groth Centre for which they are hopeful to get approval. They could not substantiate as to how they were discriminated and thus the writ petition was dismissed.

30. The petitioners of this bunch were not parties in writ petition No. 38758 of 2008. They have right challenge the acquisition of land on the basis of law laid down by the Supreme Court. The principle of res judicate are not attracted to estop from challenging acquisition. We are also find that the ground that the land acquired for public purpose has been used for private commercial purposes by allotment of land to private builders for construction of multi-storey housing complexes was neither taken nor pressed in the aforesaid writ petition dismissed by the Court. The law of acquisition of land by the State applying Section 17(1) and (4) has undergone a sea change after the judgments of the Supreme Court in Anand Singh's case (Supra) decided on 28.7.2010, Radhey Shyam's case (Supra) decided on 18.4.2011 and Devendra Kumar's (Supra) case decided on 6.7.2011

31. In Mathura Prasad Sarjoo Jaiswal v. Dossibal N.B Jeejeebhoy [AIR 1971 SC 2355], the Supreme Court held that a question of jurisdiction of the court, or of procedure, or a pure question of law unrelated to the right the parties to a previous suit, is not res judicata in the subsequent suit. If by an erroneous interpretation of the statute, the Court holds that it has no jurisdiction, the question would not, operate as res judicata.

32. Moreover we find that in M/s. Crane Bel International Private Ltd, this Court did not have occasion to consider the judgement rendered by the Supreme Court in Anand Singh's case (Supra) which was decided on 28.7.2010 and the subsequent judgements of the Supreme Court in State of West Bengal v. Prafulla Churan Law (Supra), Dev Sharan v. State of UP (Supra); Radhey Shyam (Dead through LR v. State of U.P (Supra) in which the same legal questions of applying Section 17(1) & (4), was decided in favour of the petitioners.

33. The judgment of the Supreme Court in Radhey Shyam's case (Supra) and the recent judgment in Greater Noida Industrial Development v. Devendra Kumar (Supra) decided on 6.7.2011, fully cover the question of law raised in these writ petitions.

34. We find that the builders who have been allotted land, and are raising constructions on it, have taken possession on their risk and cost. It is difficult to believe that they were not aware that the acquisition of land in Village Patwari is under challenge in the High Court. They never sought impleadment in the writ petition and apply for vacating the interim order. The allotment of land to them and the constructions raised by them are clearly in contempt of the order of the court directing the parties to maintain status quo. The officers of GNIDA were fully aware of the interim orders and they were not expected to allot the land and allow the builders to start construction and to book flats. The builders are not necessary parties to these proceedings, nor they have any equity in their favour. They got allotment of land on down payment of 5% of the premium and execution of lease deeds. We did not hear some of the counsels appearing for the builders, as they have not filed any application for impleadment. They are not even aware of the Khata number of the village, on which they are raising constructions.

35. In the end learned counsels appearing for the State of U.P and GNIDA pleaded that the court may not quash the notification under Section 4 of the Act. They submit that in other decisions of this court in respect of village Surajpur in writ petition No. 48204 of 2009 (R.P Electronics v. State of U.P) and village Gulistanpur in writ petition No. 20156 of 2009 (Smt. Rajni v. State of U.P) have only quashed the notification under Section 6 and applicability of Section 17(1) & (4) and permitted the State to hear the objections of farmers under Section 5-A of the Act. Once we have held that the purpose of acquisition of the land is not for the public purpose for which the land was acquired, namely, for planned industrial development, and that the GNIDA was all along planning, and had started the process of allotment of land to the private builders immediately after taking possession, the notifications acquiring the land through colorable exercise of power, are liable to quashed. We further find, as observed by the Supreme Court in Devendra Kumar's case (supra) that the State cannot be permitted to issue fresh notification under Section 6(1) of the Act after hearing farmers, after the period prescribed under the Act for issuing notification under Section 6 has expired. A Constitution Bench of the Supreme Court in Padma Sundara Rao v. State of Tamil Nadu [2002 (3) SCC 533] held that purpose of providing limitation under the first proviso to Section 6(1) is to avoid inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of notification under Section 4(1). Section 11 also provides that valuation of the land has to be done on the date of publication of notification under Section 4(1). The notification under Section 4 cannot be utilized after expiry of the period of one year under the first proviso to Section 6(1), for publishing notification under Section 6.

36. In the result all the writ petitions are allowed. We set aside the notification dated 12.3.2008 under Section 4(1), applying Section 17(1) of the Land Acquisition Act 1894, proposing to acquire a total area of about 589.188 hectares of land in the village Patwari, Pargana Dadri, District Gautam Budh Nagar, and the notification dated 30.06.2008 under Section 6 read with Section 17(4) of the Act, and all consequential actions taken by the State Government. The respondents will handover possession of the land back to the landowners.

37. Before parting with the case we may observe that lot of confusion seems to have been caused in the area where the land of farmers were acquired by the GNIDA and given to private builders for construction of multi-storey housing complexes. Most of the builders, as observed above, are not even aware of the khata number and the villages on which plots have been allotted to them and that the persons who have booked flats in these complexes are not getting proper information. We therefore direct the GNIDA to publish entire details of the land which has been acquired in the last 10 years, and has been allotted to the builders, giving the name of villages and khatas on which plots have been alloted and constructions are in progress; the number of cases pending in courts against such acquisitions (mentioning the village and plots), and the number cases decided by the court. The publication of information will avoid doubts in the mind of general public as well as farmers of the area. The GIDA will also prepare booklet containing the aforementioned information and make it available to all concerned.

38. We also issue directions, as it have been issued by the Supreme Court, in Devendra Kumar's case (Supra) that those who have made investment by booking flats etc., shall be entitled to get back the amount along with interest at an appropriate rate and if the builders refuse to pay the amount, then they shall be free to avail appropriate legal remedy.